Bianca S. Samuels | It takes two: Can underage boys consent to sex?

Currently before the court is a matter in which a 13-year-old boy has been charged with the offence of sexual intercourse with a person under 16. A young girl, one year his senior, has given a statement that this youngster is her boyfriend and that they had consensual sex.

While the minor boy has been charged and is currently being prosecuted, the minor girl has not been charged; she is merely the 'victim'.

This is not a unique set of facts. The reality is that minors are engaging more and more in sexual activity with other minors, and at a much earlier age. Nevertheless, even where the girl does not, in any way, feel victimised, young boys are increasingly facing criminal charges to the exclusion of females, where both parties to the sexual act are under the age of 16.

The question is, why aren't girls also charged in such circumstances? The relevant law states: "... A person who has sexual intercourse with another person who is under the age of 16 years commits an offence." The legislation does not create a gender-specific offence. If both persons who engage in 'consensual' intercourse are under 16, have they not both contravened the law?

That this practice is an affront to our boys' constitutional rights is gainsaid. The Constitution secures their right to equality before the law, the right to equitable treatment, and the right to freedom from discrimination on the ground of being male. The only difference between two children in those sets of facts, who both freely engage in sexual activity, is the fact that one is a boy and the other is a girl. Everything the boy has done 'wrong', so, too, has the girl. The boys are, therefore, being treated differently and, worse yet, less favourably solely because they are male. That is textbook discrimination. That is unconstitutional.

When the officers at CISOCA receive a statement from a minor female saying that she had sex with her boyfriend minor, why do they go for the boys and detain them at the juvenile correctional centre, while the girls maintain their liberty? I am yet to find a rational justification.

The laws were enacted to protect minors from involuntary and coercive sexual activity occasioned by adults. What the law does not contemplate, however, is that minors are consenting to having sex with other minors. We are applying laws to these minor boys that were tailored to address sexual predators. Does that rest well with the Parliament? Does that rest well with society?

INCAPABLE OF CONSENT

The principal rationale for the designation of an age of consent is that minors are incapable of consenting to sexual activities because of their youth and associated immaturity. This means, therefore, that if a similar-aged minor male and minor female engage in sexual intercourse, neither of them can legally consent to that activity. And, with current trends, perhaps it needs to be overtly stated - our boys cannot consent either.

By continuing with this discriminatory practice, we are straining societal bonds, which have the inevitable effect of fostering delinquency. What discourages recidivism is reintegration into society, but the possibility of the latter is significantly diminished by the stigmatisation cultivated by charging these boys in the very first place.

However, the issue is two-tiered. Beyond the question of discrimination and lack of equality before the law is the question as to whether consensual sex between two persons under the age of 16 ought to be criminalised in the very first place. The laws should be used to prosecute those for whom they were intended - sexual predators who pose a threat to our society, our country's moral fabric, and the safety of our children. These children need to be educated, counselled, and rehabilitated, not marginalised, discriminated against, and targeted.

I urge the State to adjust its response to the increasing acceptance of early sexual intimacies by our children, both boys and girls. Turn your attention to both sexes, because after all, it takes two.